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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sidney S. Moreland filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The grievance alleged that the Agency violated the parties' master collective bargaining agreement by failing to fill vacated Correctional Officer posts. The Arbitrator found that the Agency did not violate the master agreement by failing to fill those posts. For the reasons that follow, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Agency was vacating posts throughout the institution to avoid paying overtime and for other reasons of administrative convenience. After the parties could not resolve the matter, they submitted it to arbitration.

Before the Arbitrator, the Union argued that the Agency violated Article 27, Section a of the master agreement by vacating established and budgeted posts to avoid paying overtime or for reasons of administrative convenience. [n1] According to the Union, these actions did not lower the inherent hazards of the institution to the lowest level possible.

The Arbitrator found that Article 27, Section a conditionally commits the Agency to lower safety hazards to the lowest point possible without relinquishing its management rights under the Statute. He further found that the Statute allows "management the exclusive authority to assign work, determine the personnel by which agency operations shall be conducted, to determine the number of the employees and the internal security practices of the agency." Award at 11. Based on these findings, the Arbitrator determined that the Agency in the agreement had not relinquished its statutory rights to determine work assignments and internal security practices. Accordingly, he ruled that the Agency did not violate Article 27, Section a of the master agreement by not filling vacant Correctional Officer posts and denied the grievance. [n2]

III. Positions of the Parties

a. Union's Exceptions

The Union first claims that the Arbitrator failed to conduct a fair hearing by not allowing all of the evidence to be presented at the hearing. In this regard, the Union argues that the Arbitrator denied its request to have several other witnesses testify as to the adverse effects of the vacating of posts. The Union also asserts that the Arbitrator failed to conduct a fair hearing by misinterpreting Article 27, Section a. The Union argues [ v58 p470 ] that the provision requires the Agency to take action to lower the inherent hazards of the facility and that the Arbitrator misinterpreted the provision by not requiring the Agency to take action to achieve that goal.

The Union next contends that the Arbitrator's interpretation of Article 27, Section a conflicts with other arbitral interpretations of that language which the Authority has upheld. See United States Dep't of Justice, Fed'l Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001) (BOP, Atlanta) (Chairman Cabaniss dissenting); United States Dep't of Justice, Fed'l Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331, 332-34 (2001) (BOP, Guaynabo) (Chairman Cabaniss dissenting); United States Dep't of Justice, Fed'l Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 468-70 (2000) (BOP, Marianna). Further, the Union maintains that the award conflicts with a recent decision of another arbitrator involving the same issue and the same local Union (Lumbley award).

Finally, the Union argues that the award is contrary to § 7106 of the Statute because the Arbitrator failed to take into account the Union's rights under § 7106(b) of the Statute in determining that the Agency had not waived its statutory management rights. The Union maintains that the Agency, in other parts of the agreement, waived a number of its rights and that the Authority has held that requiring the Agency to lower inherent dangers does not abrogate management's rights under § 7106.

b. Agency's Opposition

The Agency first argues that the Arbitrator conducted a fair hearing as he allowed both parties ample opportunity to present their respective cases. Specifically, the Agency asserts that the Agency presented a number of documents and witnesses in support of its case. Further, according to the Agency, the Union indicated at the end of the hearing that it was satisfied with the state of the record.

The Agency next asserts that the award draws its essence from the agreement as the award contains a rational construction of Article 27, Section a.

The Agency also contends that the Arbitrator, contrary to the Union's assertions, was under no obligation to conform his award to prior arbitration awards interpreting the same contractual provision as arbitration awards are not precedential.

Finally, the Agency maintains that the award is not contrary to § 7106 of the Statute. The Agency argues that the Arbitrator properly applied § 7106 of the Statute and that the Union's exception in this regard constitutes mere disagreement with the Arbitrator's determination that the Agency had not relinquished its statutory rights.

IV. Analysis and Conclusions

a. The Arbitrator did not fail to conduct a fair hearing

To establish that an award is deficient on the ground that an arbitrator failed to conduct a fair hearing, a party must demonstrate that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceedings as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995).

In this regard, the Union first argues that the Arbitrator failed to conduct a fair hearing by denying the Union the opportunity to present additional witnesses as to the adverse effects of vacating posts. The Union, however, indicated at the conclusion of the hearing that it was satisfied with the state of the record. Award at 5. Even if the Union could establish that the Arbitrator refused to hear additional witnesses offered by the Union, it has not shown that such a refusal would affect the fairness of the proceedings as a whole, as the Arbitrator did not base his ruling on a lack of an adverse impact. Instead, he determined that the master agreement preserved management rights under the Statute, a conclusion that does not rely on any absence of adverse impact on bargaining unit employees. Accordingly, the Arbitrator did not fail to conduct a fair hearing by allegedly preventing the Union from presenting additional witnesses.

The Union also argues that the Arbitrator failed to conduct a fair hearing by misinterpreting the master agreement. The Union's exception, in this regard, does not challenge the Arbitrator's actions in conducting the proceeding. Rather, the exception challenges his ultimate conclusion in the matter. Therefore, it provides no basis for finding the award deficient. See SSA, Baltimore, Md., 55 FLRA 498, 501 (1999) (disagreement with arbitrator's evaluation of the evidence does not provide basis for finding the award deficient).

b. The award draws its essence from the agreement

Although the Union does not specifically assert that the award fails to draw its essence from the agreement, it does claim that the Arbitrator misinterpreted the agreement by failing to require the Agency to take actions to lower the dangers present in the facility. We construe this argument as a claim that the award fails to [ v58 p471 ] draw its essence from the agreement. See United States Gov't Printing Office, Washington, D.C., 57 FLRA 299, 300 (2001). For an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Ctr., New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

As relevant here, the Arbitrator found that the Agency, under Article 27, Section a, retained the sole right to determine internal security practices and to assign work. This determination rests squarely upon his construction of Article 27, Section a, which commits the Agency to lower hazards "without relinquishing its rights under 5 USC 7106." The Union has not demonstrated that the Arbitrator's construction of that language is irrational, implausible, or unconnected with the language of the agreement.

c. The award is not deficient because it conflicts with prior arbitration awards

The Union asserts that the interpretation of Article 27, Section a reached by the Arbitrator in this case is at odds with the interpretation of that same language set forth in the Lumbley award and awards upheld by the Authority in BOP, Atlanta; BOP, Guaynabo and BOP, Marianna. [n3]However, arbitration awards are not precedential, and a contention that an arbitration award conflicts with other arbitration awards provides no basis for finding an award deficient under the Statute. See IFPTE, Local 28, Lewis Engineers and Scientists Ass'n., 50 FLRA 533, 536-37 (1995). Consequently, the Arbitrator was not required to conform his interpretation of Article 27, Section a to prior interpretations of that same language.

d. The award is not contrary to 5 U.S.C. § 7106

The Union's exception that the award is contrary to § 7106 of the Statute challenges its consistency with law. The Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

The Union contends that the Arbitrator improperly failed to take into account the Union's rights under § 7106(b) in resolving the grievance. Contrary to the assertion of the Union, the Arbitrator acknowledged that the parties could negotiate limitations on the Agency's management rights, even if he did not specifically cite to § 7106(b). Award at 11. However, he found that the parties had not agreed to any limitations on the Agency's rights to determine work assignments and internal security practices. His award resulted from an interpretation of the parties' respective rights under the agreement and there is no reason to conclude that, as a matter of law, the Arbitrator was required to interpret the agreement differently. Therefore, the Union's exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

Footnote # 1 for
58 FLRA No. 114
- Authority's Decision

Article 27, Section a of the parties' agreement provides, in pertinent part:

There are essentially two (2) distinct areas of concern regarding the safety and health of employees in the Federal
Bureau of Prisons:

1. The first, which affects the safety and well-being of employees, involves the inherent hazards of a
correctional environment; and . . . .

With respect to the first, the Employer agrees to lower those inherent hazards to the lowest possible level, without relinquishing
its rights under 5 USC 7106. The Union recognizes that by the very nature of the duties associated with supervising and
controlling inmates, these hazards can never be completely eliminated. . . .

Exceptions at 3.

Footnote # 2 for
58 FLRA No. 114
- Authority's Decision

The Arbitrator also ruled that the grievance was arbitrable; that the Agency had not failed to fill vacant posts solely to avoid
paying overtime; and that the Union was not entitled to representation on an Agency committee. Neither party has objected to
these findings. Thus, they are not before the Authority.

Footnote # 3 for
58 FLRA No. 114
- Authority's Decision

We note that the Authority no longer uses the abrogation standard it employed in the cited cases to determine if arbitration
awards are contrary to 5 U.S.C. § 7106. See United States Dep't of Justice, Fed'l Bureau of Prisons, Fed'l Transfer Ctr., Oklahoma
City, Ok., 58 FLRA 109 (2002) (Chairman Cabaniss and Members Armendariz and Pope concurring).